Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 8 - Evidence - October 31, 2006
OTTAWA, Tuesday, October 31, 2006
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:20 p.m. to review the Canadian Environmental Protection Act (1999, c. 33) pursuant to section 343(1) of the said act.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: Honourable senators, over the last few months our committee has held a number of scoping meetings on the Canadian Environmental Protection Act (1999), CEPA, before deciding on how best to proceed with a statutory review of that act.
The committee has decided to examine this large act by analyzing three case studies to help determine how well the act is protecting Canadian citizens from the detrimental health effects known to result from exposure to substances. The first case study will focus on mercury.
Appearing before us this evening as part of a panel is Mr. Hugh Wilkins and Dr. Kapil Khatter, who has been with us before. We are delighted to welcome you back, doctor.
Hugh Wilkins, Staff Lawyer, Sierra Legal Defence Fund: Mr. Chairman, I will begin with a brief review of the some of the issues that we believe are important and that should be considered by this committee with respect to the CEPA review regarding mercury.
Mercury emissions in Canada cause severe health, economic and environmental damage to Canadians. A number of studies have shown the effects of mercury, in particular on children. The U.S. National Academy of Sciences states that the risks of mercury include an increase in the number of children who have to struggle to keep up in school. The United States Environmental Protection Agency, EPA, states that children who are exposed to mercury prenatally are at an increased risk of poor performance on neurobehavioural tests. The International Joint Commission states that there is strong evidence that pregnant women who eat certain sport fish may have babies that are delayed in neurological development.
In 1978, the Canadian government made the commitment under the Great Lakes Water Quality Agreement to virtually eliminate inputs into the lakes of persistent toxic substances, including mercury.
Other jurisdictions on the continent have taken strong action on mercury: Connecticut has recently passed regulations that require a 90 per cent reduction in mercury emissions from coal-fired power plants by 2008; Massachusetts has regulations requiring mercury reductions by 85 per cent by 2008 and 95 per cent by 2012.
However, in Canada, we have no comprehensive binding regulations to substantially reduce mercury emissions and their effects, apart from the regulation of chlor-alkali releases, which, at this point, applies to only one facility in the country.
The problem arises not so much from deficiencies in CEPA, but from deficient political will to take action. We have a commitment under the Great Lakes Water Quality Agreement to virtually eliminate mercury deposits, and we have the tools under CEPA to virtually eliminate human-caused emissions of mercury. However, we have not used these tools.
In reviewing CEPA, consideration must be given to ways to strengthen mechanisms within CEPA that buttress the political will to take the regulatory action needed to virtually eliminate human-caused mercury in Canada. Specifically, attention should be given to strengthening CEPA's tools that encourage public participation in the regulatory decision- making process, expand the scope of regulatory options and promote the enforcement of regulations once they have been passed.
The two CEPA tools that have primarily been used in the past to control mercury pollution are pollution prevention plans — P2 plans — and Canada-wide standards, CWS. Pollution prevention plans are non-binding, unenforceable codes of conduct that are designed to encourage polluters to take action on reducing their emissions to the environment.
The present government has proudly made claims of taking strong action on mercury emissions through its P2 planning initiative on mercury emissions from base metal smelters. It is true that this is the first time the federal government has taken action in this regard; but this action is certainly not a strong or meaningful means of tackling the issue. The non-binding unenforceable P2 plan on base metal smelters focuses only on one emitter, the Hudson Bay Mining and Smelting facility in Flin Flon, Manitoba. The company is required to draft a pollution prevention plan and report on its implementation; but there are no mechanisms for ensuring that the company meets its targets or takes effective action.
Certainly, this smelter is one that should be targeted as it is one of the largest emitters of mercury on the continent. However, a more serious effort is needed than through a non-binding, unenforceable code of conduct to effectively address the significant health, economic and environmental costs of mercury emissions across the country.
The other method, that is presently being used, of controlling mercury emissions in Canada has been through another non-binding, unenforceable mechanism, the Canadian Council of Ministers of the Environment's Canada- wide standards. Canada-wide standards have been agreed for mercury emissions from base metal smelters and waste incineration, mercury-containing lamps, dental amalgam waste and, most recently, coal-fired electric powered generation plants.
Each province has a responsibility for implementing these standards and, as such, the degree to which they are binding or enforceable depends on the jurisdiction. However, in terms of mercury, all the Canada-wide standards are voluntary. As such, emitters of mercury are encouraged to make determined efforts at achieving the standards while no enforcement tools exist.
In fact, before the Canada-wide standards on mercury emissions from coal-fired power plants was adopted, Ontario's Minister of the Environment said that Ontario would not be able to meet its commitment.
Like pollution prevention plans, the fact that the Canada-wide standards are not binding or enforceable has meant that once they have come into effect, they have had minimal impacts. The Canada-wide standards are, in essence, voluntary objectives with little means for follow-up or accountability.
However, there are tools under CEPA which can be effective and can produce results. Mercury is listed as a toxic substance under Schedule 1 of CEPA, which means it can be regulated under the act. Section 93 of CEPA allows the government to make regulations with respect to a toxic substance on a wide variety of issues, including: the quantity or concentration of the substance that may be released into the environment; the places or areas where the substance may be released; the quantity of the substance that may be manufactured, processed, used, offered for sale or sold in Canada; and the quantity or concentration of the substance that may be contained in any product that is manufactured, imported, exported, offered for sale or sold in Canada.
Despite these tools, only one regulation on mercury has been enacted by the federal government. As I noted earlier, that is the regulation on chlor-alkali. Again, there is only one facility in Canada that must be regulated in this regard.
CEPA also contains provisions on the virtual elimination of certain toxic substances. Under section 77(4) of CEPA, substances that have the following attributes may be proposed for virtual elimination: the substance must be persistent and bioaccumulative; the presence of the substance in the environment must result primarily from human activity; the substance must not be a naturally occurring radionuclide or a naturally occurring inorganic substance.
Mercury has each of these attributes and should be listed on the virtual elimination list. The reason it has not been listed is, reportedly, that mercury is a naturally occurring substance and, therefore, does not qualify under the second criteria: the presence of the substance in the environment results primarily from human activity.
However, Environment Canada itself states that half of the mercury in the environment is from human activities. The idea of waiting until more mercury accumulates in our environment before taking action seems counterproductive.
Following the lead of other jurisdictions, including Sweden, there is a need to regulate mercury, so that human- caused sources of mercury are eliminated. Presently, no substances whatsoever have been placed on the virtual elimination list under CEPA. It is time that mercury became the first. However, again, it is a question of political will.
On October 19 of this year, the federal government published its notice of intent to regulate several air pollutants, including mercury. This initiative potentially reflects some political will to take regulatory action on toxic substances. However, the notice provides no specifics regarding regulations focusing on mercury, and the proposed time frames for bringing regulations into force on this and other air pollutants are very long.
On October 19, the federal government introduced a bill to amend CEPA and to create Canada's clean air act. In this bill, mercury is designated as an air pollutant. Although, no proposal to correspondingly delete mercury from CEPA's Schedule 1 has yet been made, such an initiative could diminish the government's ability to effectively regulate this substance.
Former Supreme Court of Canada Justice Gerard La Forest has stressed that the government should not alter the existing provisions on mercury under CEPA. He states:
The task of devising new environmental provisions, which would provide the tools for the protection of the environment equivalent to those provided by CEPA, is fraught with danger.
Arguments have been raised that designating mercury as an air pollutant may raise issues of constitutional law about whether the federal government has the jurisdiction to enact legislation on air pollutants. The Constitution does not delineate federal authority to pass laws regarding the environment as the environment was not a pressing issue at the time of Confederation.
Past Supreme Court of Canada decisions have found that the federal government has the power to enact legislation on toxic substances. However, again, there has not been any judicial comment on whether the federal government has the authority to pass legislation on air pollutants, as defined by the new bill. To subject the environmental laws on mercury to such a challenge by designating it as an air pollutant is unnecessary and potentially problematic.
Our submission is that the key to improving CEPA is to generate political will — to provide the mechanisms in CEPA to encourage political will to effectively put forward regulations that will make a difference. There are two main problems with CEPA that must be addressed in order to strengthen the political will to enact effective regulations and diminish the health, economic and environmental harm that mercury emissions cause.
First, CEPA's provisions on public participation and transparency must be strengthened. Mechanisms must be put in place that permit citizens to petition the government to enact regulations, pollution prevention plans and equivalency agreements under the act, and to be engaged in consultations on their drafting. Mechanisms must also be created that allow the public to monitor activities in the pollution prevention planning and Canada-wide standards processes and enforcement of regulations.
Second, the scope of the regulations that can be passed to regulate mercury should be expanded, providing greater flexibility in regulatory approaches. These approaches must aim to eliminate mercury emissions from all human- induced sources.
Regulatory actions should include the ability of the ministers to provide incentives for the use of substitutes for mercury in products, renewable energy and conservation and for the internalization of environmental and health costs and the costs of production. If regulatory action can take new or innovative binding approaches to regulating mercury, the political will to take such actions may increase.
Incentives for enforcement of pollution prevention plans, Canada-wide standards and regulations must also be strengthened under CEPA. Provisions should be included that encourage citizens to participate in enforcing the act. Monitoring and review mechanisms regarding the implementation of Canada-wide standards, pollution prevention plans and regulations should be created that encourage public involvement, transparency, and social and corporate responsibility and accountability.
Barriers preventing citizens from engaging in pollution production actions under Part X of CEPA should be examined and removed. The threshold hurdles to such actions, and to the right to bring a damages claim, must be lowered.
Another suggestion is that fine-splitting provisions, based on the Fisheries Act regulations, should be included in CEPA. Guidelines regarding the Attorney General's entitlement to stay and take over private prosecutions of regulatory offences should be set forth, which provide incentives for citizens to bring forward private prosecutions. The courts should also be empowered to order the recovery of costs incurred in the investigation and prosecution of offences under the act, in relation to private prosecutions.
To conclude, given the lack of political will to take action under CEPA on mercury, the act has not met its objectives of preventing mercury pollution and protecting the environment and human health from its harmful effects. Significant changes to mercury are not needed; however, consideration should be given to strengthening the act, which will increase the political will to take decisive regulatory action on mercury.
A focus on encouraging public participation in the regulatory decision-making process, expanding the scope of binding regulatory actions and promoting the enforcement of regulations once they have been passed are important means to generate the political will and awareness needed to reduce mercury emissions and the harmful effects they have on our health, economy and environment.
Dr. Kapil Khatter, Director of Health and Environment, Pollution Watch: I am a family doctor, and I am with Pollution Watch. Pollution Watch is a project of two environmental groups: Environmental Defence and the Canadian Environmental Law Association.
I have been following the CEPA review closely and am very interested in how the act can be improved to deal with toxic substances like mercury. My presentation will differ from the brief that should be in front of you — I have slightly different information.
Mercury is a serious problem in our environment. For all that we have done to reduce emissions, our emissions are still magnitudes higher than we can afford them to be.
Mercury is exquisitely toxic. When we talk about toxic exposure to mercury, we talk in micrograms. The Canadian acceptable intake level for a 10-kilogram child is five micrograms of mercury, yet we are still emitting mercury in the tonnes — a tonne being a trillion times more than the little microgram that can cause harm.
We should not be acting satisfied that we have done enough. In fact, when we speak of what we have done on mercury through the CEPA, the answer is next to nothing. It is not CEPA action on mercury that has taken us from being horrible, in terms of our mercury emissions, to just bad. Most of the mercury reduction that has happened has been a co-benefit of upgrades meant to reduce other emissions, like sulphur dioxides to prevent acid rain. Much of the rest of it has come through regulations from other countries. The United States legislated restrictions on mercury in paint and in batteries, and Canadians have since benefited from this.
Where has this gotten us so far? Of the over 2,000 fish consumption advisories in Canada each year, more than 97 per cent of them are for mercury. In 30 per cent of Ontario lakes, even the small fish are above the safe limit. The larger the fish, the more likely that it will be above the limit.
Our particular mercury hot spots are the Arctic and Atlantic Canada. Commercial fish in parts of the Arctic are consistently above Health Canada guidelines; 16 per cent of people living in northern Aboriginal communities have over 100 micrograms per litre of mercury in their blood. That is, they have five times the level that Health Canada says is the beginning of increasing risk from mercury.
Wildlife studies in Atlantic Canada have shown that loons and other wildlife have the highest levels of mercury in North America. Atlantic Canada is not polluted with mercury because of Asian factories. This is locally emitted mercury in the Maritimes, and from the Great Lakes and other lakes in North America.
We cannot afford to shrug our shoulders and blame the problem on Asia. We are part of the problem. Nearly 40 per cent of mercury pollution in North America begins in North America. Yes, we do need international agreements to protect Canadians from global mercury sources; but we can only demand of others what we have done ourselves.
Instead, we continue to permit the use and release of large amounts of mercury. We use over five tonnes of mercury for filling teeth; 10 tonnes go into consumer products each year; and air emissions from reporting facilities over the last five years have hovered around the five-tonne level.
How does CEPA need to be improved so we can better deal with the mercury problem? First, it needs to be used to deal with toxic substances like mercury when they are in consumer and medical products. There is no rational reason why Health Canada should continue to license the sale of mercury thermometers when there are perfectly good and affordable alternatives. A broken thermometer flushed down the sink or thrown in the garbage is, by itself, enough mercury to cause harm.
Second, virtual elimination in the act needs to be fixed. Virtual elimination has not been used yet since CEPA 1999 was put in place, and only one substance has been proposed.
We should be working toward the elimination of the human sources of mercury, given that mercury is toxic, is persistent in the environment and accumulates in our bodies. The definition of virtual elimination in CEPA, however, excludes mercury because it is a naturally occurring substance. This should not be keeping us from virtually eliminating the human contribution of mercury to the environment.
Finally, the Great Lakes-St. Lawrence Basin, as it is for many other pollutants, is one of our major sources of mercury — and one of the major sources of mercury pollution in Atlantic Canada — due to the amount of industry and the size of the population.
We feel that CEPA should recognize such hot spots and include special measures to deal with our worst sources of pollution. Thank you.
Senator Cochrane: Last week, two doctors appeared before our committee from the Canadian Dental Association. With regard to your last comment about thermometers, you say some have been dumped down into the sink and disposed of in that manner. We were told that does not happen.
There is a specific way of disposing of such items, and it is combined with several other substances. After that, they are put through scrubbers, and no toxic substances are released. Do you want to comment on that?
Dr. Khatter: When I mentioned thermometers, I was referring to the private sale to citizens in Canada. Given there are digital thermometers that are just as accurate and affordable, there is no reason to sell thermometers containing toxic substances.
Senator Milne: Are you talking about mercury or amalgam in the thermometers?
Dr. Khatter: I was talking about thermometers. Do you want to talk about it in terms of amalgam?
Senator Cochrane: This is with respect to mercury in thermometers. You stated that everything is flushed down the kitchen sink or the bathroom sink, and then it appears in our soil and in our waters. Was that not what you were referring to?
The Chairman: I believe Dr. Khatter is saying that if and when we flush a mercury thermometer down the sink or put it in the garbage, it then gets into the environment.
Senator Cochrane: However, that is not done anymore.
Dr. Khatter: I would hope health care institutions and dental offices take care of any mercury spill properly and deal with it as a hazardous product.
I was referring to when the average Canadian has a mercury thermometer in their house, they accidentally break it in the sink while washing it and it is flushed down the drain. There is no reason to continually use those thermometers in our homes. That is risky. The exposure to inhalation, as well as what ends up in the environment, is not safe.
Senator Cochrane: Are you happy with the dental associations' thermometer disposal methods?
Dr. Khatter: I have not followed them very closely. We are doing a better job in terms of what we call end-of-pipe control, where there is filtering and there are processes to reduce the amount of mercury that dentists are putting into the waste stream.
My understanding is the regulations do not cover all dentists. There are independent dentists who do not follow the same rules. I am not absolutely sure about that.
Senator Cochrane: They were talking about the fillings for teeth and the mercury contained in them.
Dr. Khatter: There has been a lot of progress made. One of the arguments is, if there are alternatives for mercury fillings, instead of taking an end-of-pipe approach where we try to reduce the amount of pollution occurring through dentistry, we should not be using mercury fillings at all.
Other countries like Sweden and countries in Europe have moved toward banning mercury fillings, partially for health reasons and partially for environmental reasons. I feel we can do better than simply trying to reduce the pollution that happens. We still end up with five tonnes.
Because mercury is an element, it is conserved. It does not disappear. Even if we capture the mercury and keep it from going down the sink, it still needs to be land-filled in a hazardous waste dump or put somewhere else.
Senator Cochrane: You mentioned mercury appearing in the wildlife of Atlantic Canada. Where did you say this was coming from?
Dr. Khatter: Because prevailing winds in North America tend to run west to east, Atlantic Canada is most at risk of receiving anything west of them. Environment Canada believes part of the pollution in Atlantic Canada is local, but the other parts come from the Great Lakes basin, from northeastern United States and from all other places in North America west of Atlantic Canada.
Senator Cochrane: Are you aware of any review or summary that has been completed recognizing which provinces have adopted the various mercury Canada-wide standards? How well are the provinces doing in implementing regulations for the reduction of this mercury release?
Mr. Wilkins: With respect to the Canada-wide standards on mercury, all of the provinces have used voluntary approaches for regulating mercury. We do not have any standards that can be enforced by the government.
A good example is Ontario. When the commitment was made to reduce mercury emissions, they were planning on phasing out coal-fired power plants. They have since abandoned the decision to accomplish that by a targeted date. As a consequence, they are unable to get even close to the level of reductions they had planned to attain.
Without strict regulatory requirements throughout the provinces, we will not make the type of progress that we could if we had mandatory regulations on mercury emissions.
Dr. Khatter: I wish to follow up on that. Canada-wide standards are an example of how we in Canada are abdicating the responsibility we have under CEPA to deal with the problem concretely.
A lot of Canadians are confused by the fact that we often think of ourselves as being better at managing environmental problems than the United States, yet the United States tends to use their legislation to regulate substances; for instance, mercury in paints and in batteries.
Our voluntary agreement and the slowness of the process under CEPA means we are way behind. The only reason some of these benefits have occurred is a result of countries like the U.S. moving ahead of us.
Senator Cochrane: What can we do about the mercury that goes up to the Arctic from other countries? Are we working on the international front to reduce mercury releases?
Mr. Wilkins: There has been talk on the international level about having a global mercury convention, which the European Union and a number of developing country states are actively promoting.
Canada has taken a different position. My understanding is that Canada wants to work toward a voluntary approach for regulating mercury on the international level. They are looking at partnerships and such.
Internationally, there is some movement toward a convention, but it is at a very early stage.
Canada, on the international scene, could provide a model for other countries. China, a case that people often refer to, has reached such a degree of economic expansion, and the demand for energy in that country is so high, there are a huge number of coal-fired plants being built there.
If Canada could act as a model for how mercury emission reductions can be accomplished, other countries like China, Brazil and India would have a standard to follow or on which to set their sights.
Already, a good proportion — about 47 per cent — of the mercury we receive comes from Asia. If we can set the standard high, other countries will follow and the harmful effects in Canada will be reduced.
Senator Cochrane: Have you seen any improvements recently in China and such places?
Mr. Wilkins: I have not monitored the situation in China personally, but I understand they are experiencing explosive economic growth. To accommodate the need for energy, there is a huge expansion in coal-fired plants being built. As a result of that, without strong regulations in China, we will feel the impacts of that growth.
Senator Cochrane: Have you seen any of these regulations imposed recently?
Mr. Wilkins: Not that I am aware of. It is something I can follow up on with you, if you wish.
Senator Milne: I do not understand, Mr. Wilkins, precisely what you mean by "set the standards high." Mercury is mercury. What kind of standards are you talking about?
Mr. Wilkins: I am referring to standards for mercury emissions. If Canada is able to set regulations under CEPA that require coal-fired plants, for example, to emit only a certain small amount of mercury, countries like China would be able to look at Canada, see that it is indeed possible, that the international standard is at the Canadian level, and then they will follow suit. They will also, in turn, install scrubbers into their coal-fired plants and reduce the amount of mercury they emit. Thus, the impact from their emissions will be lessened in Canada.
Senator Milne: That would seem to be a pie-in-the-sky not a mercury-in-the-sky scenario. I doubt that China would pay much attention to what Canada is doing in this area.
Mr. Wilkins: If I may respond, Canada, in the past, has tried hard to have stronger emission standards than the U.S. It is difficult for Canada to simply tell other countries that they should have stronger standards when ours are weak. If we want other countries to have strong standards, we have to have strong standards.
The Chairman: Mr. Wilkins, there are 155 coal-fired generating stations on the books in the United States. Some are being built and some are in the planning stages. Do you have information indicating that they are equipped with scrubbers to reduce mercury emissions at the high level you are talking about? Are we tilting against a windmill? With those 155 new plants, the extent of coal-burning in the United States will fill the air with mercury. It is not hard to imagine why Canadians would ask why we should bother to do anything about it here, because it will be obviated by the Americans.
Mr. Wilkins: Massachusetts and Connecticut have put forward regulations that will require reductions in mercury emissions by 90 per cent to 95 per cent. Other states have high emission standards as well. I understand that under the former Clinton administration, there was an initiative to significantly reduce mercury emissions, but that has been put on hold recently. There is significant awareness in the United States of the problem. On many pollution issues, the United States has done a much better job than we have done, I am afraid to say.
Senator Adams: Mr. Wilkins, you mentioned in your brief that there should be something in the Fisheries Act with respect to mercury. Could you explain a bit about mercury in fish and what we could do vis-à-vis the Fisheries Act to reduce those mercury amounts?
Mr. Wilkins: One way to encourage private prosecutions under CEPA, so that the public can ensure the regulations are enforced, is to use fine-splitting. In the regulations under the Fisheries Act, there is a provision such that an individual, who goes forward with a private prosecution under the Fisheries Act and is successful, is entitled to split the fines. They will receive half the fines awarded and the government will receive the other half. This fine-splitting encourages the public to enforce the Fisheries Act, but could inspire the public to enforce CEPA as well and to actively engage in the issues.
The Chairman: Would it not also involve encouraging the ecological equivalent of ambulance chasers?
Mr. Wilkins: In a sense, you could interpret it that way but people who go forward with private prosecutions under CEPA would do it seriously. The record under the Fisheries Act has not shown that kind of activity happening. It can be termed in that way, but it is not that way in reality.
Senator Kenny: I have a supplementary on the same topic, if I may. How high are the fines?
Mr. Wilkins: I do not have the figures for fines under the Fisheries Act, but I could obtain that information for the committee.
Senator Kenny: Are the amounts trivial?
Mr. Wilkins: No.
Senator Kenny: What consequences would there be for someone who pursued a prosecution but it was found that the charge was baseless?
Mr. Wilkins: For an environmental prosecution under CEPA, there are numerous mechanisms that allow the courts to stay proceedings that are frivolous or vexatious. These kinds of prosecutions would never get to the stage of being deemed groundless.
Senator Kenny: How much effort goes into someone who is defending themselves from a charge before the charges are stayed? Who compensates them for that exercise?
Mr. Wilkins: The problem arises from lack of resources on the part of the federal government to enforce the regulations under the legislation. There are not enough enforcement officers, so there are not many prosecutions under the Fisheries Act.
Senator Kenny: Mr. Wilkins, I am with you on that. We once added them up, and it worked out to one and one- quarter prosecutions per province. The committee was not impressed with the determination of the government to make this act a reality. Having said that, you are recommending, to the committee, that we have bounty hunters with a view to claiming half the fine. At some time, with significant fines, someone will declare the profit centre for exploitation, which leads me to consider the poor person on the other end of it. We do not know until they go through the process, of course, but they will find that when they are charged, it is a very expensive deal for which to mount a defence.
You can say that they should take comfort because the courts will protect them and will stay the charges, but many steps in the process take place before that can happen. A prudent person would engage a lawyer or lawyers, who would engage the experts, and a great deal of time would be spent simply because they requested an appearance in a court of law. The consequences would be so great that they would not want to risk arriving unprepared. The judge might well throw it out; but, in the interim, they have incurred lost time and lost money. However, the person prosecuting does not have any consequences to face if they are ambulance chasing.
Mr. Wilkins: That is the wrong term for it.
Senator Kenny: They are doing it because they are trying to make money. It is a pejorative term and I should not have used it.
Mr. Wilkins: I do not feel there is much money to be made. There are few incentives for public interest litigants to go forward. If an award under the Fisheries Act is $100,000, then the individual will make $50,000. Will that cover the legal fees that the private interest person has to face to bring the prosecution? It probably would not, so I do not believe there is money to be made. It is an incentive to cover costs for bringing private prosecutions.
Senator Kenny: You were recommending this course of action to the committee just now. The Chairman and I raise the point that some people, perhaps not the majority, bring frivolous and vexatious actions because they deem it sport.
You talked about a fine of $100,000 shared by the government and the prosecuting individual if successful. I would say that $50,000 is pretty fair incentive for someone who does frivolous things to take a shot at it, especially given that there are no consequences of any concern.
Mr. Wilkins: There are consequences. If a person brings a frivolous claim, they will still incur significant legal fees to bring the claim forward. If they do not win, they will not receive any compensation and they might face cost consequences from the court. There are significant disincentives for ambulance chasers. We need public interest for litigation to go forward because without some incentive, there will be no prosecutions of these offences. The general public should not have to do it themselves and not have a way to recoup their losses from legal fees. It is not a money- making enterprise, but it is incentive for public-interest litigants to move forward without having to face significant legal fees.
Senator Adams: I have a question that is especially about the fishery and dragging the bottom of the sea. Sometimes the bottom of the sea contains mercury. In Nunavut, we are concerned; we do not want to repeat what happened in the East with cod. We are living in the high Arctic with different water temperatures. The draggers come up to fish in Nunavut; the vessels are huge, catching fish and perhaps disturbing mercury at the same time. We do not want to see dragging; we want gillnetting and hook fishing in Nunavut.
Seventy-nine per cent of the Arctic population have some level of mercury. Maybe it has something to do with the food we eat. A couple of weeks ago, people were here from the automotive companies and other departments and organizations. I asked them where most of the mercury is coming from; the ground, meat, et cetera. A number of years ago, when Sheila Copps was still the Minister of the Environment, she went up to Broughton Island. They were surprised to find high levels of mercury in breast-feeding women, who ate the meat and blubber of whales. I want to find out why 79 per cent of our population have mercury in their systems when we only have 9 per cent of the Canadian population in the Arctic. When we live up there without any big factories why do we have higher mercury levels?
Dr. Khatter: It has been talked about here that there is both global transport and northern transport of mercury from the south, the Great Lakes region. Mercury production outside the Arctic ends up being deposited there because of the temperatures. The primary sources through food are still seafood and fish, but because of the diet of country food or wild game, it is also a source. Health Canada's research on northern contamination is finding contamination that they are worried about. Scientists are looking at the question of whether breast-feeding and eating country food in the North is still okay. We are trying to balance out the cultural and nutritional importance versus the danger of the mercury.
It is important, but very sad that we have to ask those questions instead of backing up and asking why are we polluting fish and country food in the first place.
Senator Adams: Mostly, it comes from the factories and other industries and not so much from the ground. Is it because we are living in colder weather that it is easier to deposit up North, coming through the water?
Dr. Khatter: Outside of hydroelectric reservoirs, mercury is increasing in some of the lakes because of the dam. The majority of it is atmospheric, so it is through the air and then it deposits because of the temperature change. It is airborne, where 40 per cent of that is within North America going north, and just over half is coming from other parts of the world.
Senator Adams: What percentage of mercury would be needed in the body before it was fatal?
Dr. Khatter: What we consider to be a safe level, in terms of an intake, is quite low. In the United States, the blood level they have determined to be the safe blood level is under 6 micrograms; so a very small amount. In my brief, you will see that in the United States where the Arctic population is very small, the Environmental Protection Agency has concluded that 375,000 children are at risk for problems due to mercury because of the number of women that are above that safe limit.
We have not done that kind of research in Canada. The discussion around biomonitoring in Canada is about that research in the Arctic, in Atlantic Canada and elsewhere. We anticipate that the number of mothers and children at risk in Canada, as a percentage of the population, would be higher than in the United States.
The Chairman: I wish to introduce you to Senator Tardif who has been long recognized as one of Canada's foremost advocates and defenders of minority linguistic and cultural rights and for her considerable contribution to secondary and post-secondary education. She was appointed to the Senate in 2005 and is a member of the Standing Senate Committee on Official Languages and the Standing Senate Committee on Rules, Procedures and the Rights of Parliament.
Senator Tardif: We have spoken about mercury in thermometers and I wonder how you feel about other mercury- containing products and whether they are adequately regulated under CEPA under the Hazardous Products Act?
Dr. Khatter: Nothing has been done under CEPA in terms of mercury in products to date. The only action taken under the Hazardous Products Act has been dealing with surface coatings for children's toys so children are protected from direct contact. By and large most of the mercury is out of fungicides and paints. That is not due to Canadian regulations; it is primarily due to regulations in the U.S. and elsewhere.
I understand from the presentation by Environment Canada, they are saying their upcoming mercury strategy is likely to address the question of mercury in consumer products, and we look forward to that. We have been looking for an approach that comes out of CEPA rather than out of the Hazardous Products Act. CEPA is substance based, and the Hazardous Products Act is product based. We say get mercury out of products broadly.
There may be exceptions where mercury needs to be in a product because there is no alternative, and we need to have the lowest level of mercury possible. Instead of going through the Hazardous Products Act process where each and every product that needs to have mercury needs a regulation, let us have a rule about mercury in consumer products and make exceptions where needed.
The Chairman: Do we know of any products that use mercury for which there is not a substitute?
Mr. Wilkins: I understand there are substitutes for most products, however energy efficient light bulbs are one for which a substitute has not been found. These are a recent innovation; but, hopefully, there will be substitutes for that as well.
Dr. Khatter: One of the largest numbers of products with mercury is various measuring items, so it would be a question of whether there are digital alternatives to those. One aspect is that often an alternative exists, is affordable and available; the other is if there is no alternative. Sometimes we need regulations with a phase-in time period in order to push the innovation toward making other changes. That is what we see when other jurisdictions, such as Europe and the U.S., bring in regulations that Canada is often too afraid to bring in.
Senator Tardif: Would your recommendation be to ban all products containing mercury, rather than trying to manage the disposal of products that contain mercury?
Mr. Khatter: My organization would support the idea that as long as there are cost-effective alternatives, there is no reason to be co-marketing the same product with mercury in it. There is a trade-off with energy efficient lighting. We understand why, at this point, we still may want to switch to fluorescent lighting, even though it has a small amount of mercury. Mercury thermometers are a perfect example of a product we are trying to get off the market, where Health Canada does not want to say it cannot be used or sold.
Senator Tardif: I understand, with the recently tabled clean air bill, that mercury will stay in Schedule 1, but will also be included as an air pollutant. Will this be better for regulating mercury?
Mr. Wilkins: I do not feel the clean air bill makes much of a difference. My understanding is that the new provisions essentially take the existing provisions in CEPA and redefine substances currently on the toxic list as air pollutants. There are no new mechanisms under the clean air bill that do not already exist in CEPA. It will not give the government additional tools for addressing mercury. However, the intent to regulate, which came along with the clean air bill on October 19, is an indication of political will to regulate. That is a great change and a good indication from the government that we will be moving forward on strong regulatory action on toxic substances, including mercury.
Just to follow up on a previous question regarding the elimination of mercury in Canada; it is a goal that some countries have. Sweden is aiming to become mercury-free by 2007. This goal can be achieved and some countries are aiming to achieve it.
Senator Tardif: You have mentioned in your brief the need for more flexibility in regulations. How do you see that occurring?
Mr. Wilkins: Under the present CEPA, section 93, there is a fairly extensive list of ways in which regulations on toxic substances can be made. However, we believe that the scope of the regulations could be expanded to include incentives for substituting mercury-containing products for non-mercury-containing products. It could provide incentives for conservation of energy, for example, so that coal-fired plants are not needed. It could include the requirements for the internalization of externality, so that when the price of energy from a coal-fired plant is given, it includes the health and environmental costs of generating power from coal.
Senator Tardif: Essentially, you are saying that voluntary has not been effective in controlling mercury; we need to go to regulatory, but make it more flexible.
Mr. Wilkins: Clearly, I believe it should be regulatory. There should be strict requirements with goals for reducing mercury emissions to a level that virtually eliminates mercury. Regulatory measures are the way to do it. Canada-wide standards and the pollution prevention plans that we have used in the past have not given the results necessary. We are still seeing the environmental, health and economic consequences of having mercury emissions at the level they are now.
The Chairman: Just to finish on that, we saw, from other witnesses in a previous meeting about this exact same subject, graphs that showed us that the reduction of industrial output of mercury in this country has been over 90 per cent. I am looking at the graph here of mercury management in Canada, the mercury emissions trend from 1970 to 2003. I do not know if you can see that graph, but when you say that there has not been much effect on the basis of the present voluntary regime, if that graph is partly true, those two things seem to be mutually exclusive. One of them is wrong. Is this right, or is it right to say that the present measures that have been voluntary have failed to significantly reduce mercury? Someone is really wrong here. Who is it?
Dr. Khatter: We are both right. The reduction has happened. However, we are not at a point where we can say we are not polluting the environment with too much mercury or that we are not risking health problems. We are arguing, and the evidence shows, that the reductions on this graph have nothing to do with the Canadian Environmental Protection Act and nothing to do with the voluntary agreements we have put together in Canada around mercury. The reductions you see from the 1970s were around the shutting of chlor-alkali plants and the regulations that happened then, long before CEPA. The further reductions into the 1990s were for sulphur dioxides and nitrogen dioxides for acid rain, and as a co-benefit the mercury came down, but not because we did something specific around mercury.
Part of what is calculated in this graph is the reduction in emissions from paints and batteries. That happened because the U.S. created regulations so that companies following the regulations in the U.S. took it out of the Canadian market. The Canada-wide standards and the voluntary agreements have had nothing to do with it, and we have done nothing under CEPA.
The Chairman: Putting aside whose fault it is or where the credit lies, is it true that there have been very significant — 85 or 90 per cent — reductions in industrial level mercury emissions in Canada since the 1970s?
Dr. Khatter: There have been significant reductions, but we are not out of the woods yet. The question is, if we do not take action now, will those reductions continue? We have been riding on other people's coattails so far.
Senator Cochrane: Why were those chlor-alkali plants shut down?
Mr. Wilkins: My understanding is that in Canada they were not as competitive as in other countries; part of the reason is economic. With respect to CEPA, these reductions were prior to CEPA coming into force. Again, as my colleague states, it is not because of CEPA that these reductions happened, but because of other events and market conditions.
Senator Milne: If Canadian industry stopped emitting mercury today, how long would it take the mercury that has accumulated in country foods and in the fish in the oceans and lakes to dissipate, or would it ever?
Dr. Khatter: I am not sure how closely it has been calculated. I have heard the levels of mercury in the Great Lakes have gone down somewhat. For the goal of virtual elimination, of getting to a background level of mercury, it would take 100 years of not putting mercury into the Great Lakes. That is a ballpark estimate.
Senator Milne: You said that CEPA should be used to significantly reduce mercury use, Dr. Khatter, that emissions and transfers, special measures are needed. Health Canada needs to start through CEPA, but CEPA has so far been completely ineffective. What should be done to make it effective? What should these special measures be and how should CEPA be used to significantly reduce mercury use?
Dr. Khatter: There are three aspects. One is that, within CEPA, the powers are there to act on consumer products. There is a clause that makes that a little more fuzzy. We have been told that Health Canada is saying that thermometers are not the jurisdiction of the environment people, but rather the jurisdiction of the medical devices people. Therefore, no one is using CEPA. The act needs to be clarified so that we are absolutely clear that when something is CEPA toxic, and has been for decades, there is the power within CEPA to deal with it — be it in consumer products, medical products, pharmaceuticals or whatever.
Another aspect we have discussed is that there is a section on virtual elimination within CEPA, but it excludes substances like mercury — despite how toxic it is and despite the fact that it is persistent and bio-accumulative. We know that virtual elimination is not working and needs to be fixed. There is a broad consensus on that.
CEPA talks, in its preamble, of having an ecosystem approach. We feel CEPA needs to have teeth to go with that, in terms of how it deals with vulnerable ecosystems such as the Great Lakes-St. Lawrence Basin and the North. The Great Lakes-St. Lawrence Basin is particularly important because of the large amount of industry there. Forty-five per cent of toxic air pollutants are pumped into the Great Lakes; hence, they contribute, to a large extent, to the contamination happening in the North.
Under CEPA, we would be looking for the development of a specific coordinating office with a plan to deal with the Great Lakes, from which the resources will flow.
Senator Milne: Mr. Wilkins, you said that there is yet no alternative for energy efficient light bulbs. Many people are converting to them; I have them throughout my house. They use less wattage and, therefore, less coal is burned.
The Chairman: However, there is a lot more mercury in your house.
Senator Milne: I gather that. What should be done to encourage people to dispose of these light bulbs safely, or is there any safe way to dispose of them?
Mr. Wilkins: First, incentives should be offered to encourage new innovations so that there are substitutes for mercury in light bulbs. Regulations under CEPA could provide incentives to develop new technologies.
Second, ensure that municipalities develop safe waste disposal systems for mercury and other hazardous wastes. In Toronto, we do not have an adequate disposal system for mercury products, and people are not aware of the mercury content in certain articles. There should be better labelling to make people aware that they are hazardous.
Senator Milne: I understand that dental waste must be disposed of safely in Ontario and Manitoba, where it is mandated by law. However, it is not in the rest of Canada.
Dr. Khatter, you said that Canada's recovery rate of mercury-containing bulbs is about 7 per cent. Do you mean thermometer bulbs or light bulbs?
Dr. Khatter: We are talking about energy efficient lighting.
Senator Milne: With lighting it is probably zero. People simply do not know.
Mr. Wilkins, you said that Sweden is working toward becoming mercury free. Is that a jurisdiction that Canada should copy in regard to processing mercury waste until we do get safe light bulbs? How do they do it there?
Mr. Wilkins: I am not sure. I am not an expert in EU or Swedish law. I can learn how they are disposing of mercury and report back to you.
The Chairman: That would be helpful.
Senator Kenny: I do not understand the science of safe disposal. If it is an element that will continue to exist and persist notwithstanding, the amount of mercury that we have on earth now is the same as the amount of mercury we had on earth last year and will be the same as the amount of mercury we will have on earth next year.
Could you explain, in layman's language, how safe disposal makes a difference?
Mr. Wilkins: Much of the naturally occurring mercury is found deep underground, in coal, for example. We are taking the coal out of the ground, where it is essentially safe for us, because the mercury does not get into our water supply when it is in coal veins. When we take the coal out, we emit the mercury into our air and waters. We are taking it from a safe place and distributing it into places where it can significantly harm us.
Senator Kenny: Is there no place where a coal vein runs into water or is part of the water table? Is there no natural exposure to mercury?
Mr. Khatter: There is a very small background level of mercury. There are two aspects. One is what scientists talk about as the global pool of mercury that we can impact. This is the mercury that is no longer locked in the rocks; mercury that people have liberated and is now in circulation. We have to figure out how to safely dispose of this, because we cannot put it back in the rocks.
The other aspect is that mercury comes in different types. Inorganic mercury — mercury that is in the rocks — is not as harmful as mercury that has been acted upon by bacteria in a lake or a landfill. It becomes methylmercury, an organic type of mercury that is more harmful.
In terms of disposal, they are considering such methods as injecting it back underground. Smelters and other facilities decrease their emissions by scrubbing the mercury out and landfilling it on-site or sending it to hazardous waste facilities.
We have created this global pool of mercury, and the first step is to ensure that we stop liberating mercury as much as possible.
Senator Kenny: You talked about it disappearing from the Great Lakes in 100 years. Is there a device you could bring to measure the amount of mercury in this room?
Dr. Khatter: We could measure the mercury in the air. When talking about mercury in the Great Lakes, they are referring to the level of dissolved mercury in the water, mercury in the fish, other wildlife and the sediment, which would probably be the last area to clean out.
Senator Kenny: Are you suggesting that it would be safe to store mercury in the sediment, or is it because it would flow down the St. Lawrence and end up in the ocean?
Dr. Khatter: I am not that strong on that science but, to a certain degree, elements in sediment are fairly safe. It stays where it is, but there is certainly interaction with the water.
I would assume that sediment would be the last place from which mercury is released. I am sure that sediment releases a small amount of it back into the water and it would eventually move out. The mercury in the sediment in the Great Lakes right now would not be at natural levels; it would be much higher due to many years of pollution. We want to get closer to a background level.
Senator Kenny: You seem to talk about landfills as though they have something around them that prevents whatever is in them from ever moving elsewhere. That is not my understanding of a landfill. I find myself thinking of storing nuclear waste, where there is a hope that at some point a half-life is reached and eventually, hundreds of year from now, there will be less radiation.
Mercury will stay the same, will it not?
Dr. Khatter: Yes.
Senator Kenny: Landfills do not stop water from running through it and continuing elsewhere. What are you really suggesting, and why is it better?
Dr. Khatter: It is a significant problem. They are trying to work on how to get the mercury away from where it can be exposed to people. You are right that regular landfilling of mercury-containing garbage does not keep that mercury from leaking out; but any mercury waste that a facility has would have to be put in special hazardous waste facilities, landfills with liners that are especially designed not to let that mercury leak out. I cannot comment on how reliable those are.
Senator Kenny: Well, then, why are we dealing with this issue? If you cannot comment on them being reliable, why are we telling people to store them properly and put them in landfills if we do not know? Do you know of any reliable landfills?
Dr. Khatter: Again, we are talking about two different aspects in regard to regular garbage landfills and hazardous waste disposal, which is the best technology that they have right now for dealing with mercury. The question is whether we pump it out of our smokestacks or we keep it from coming out of our smokestacks, and, at that point, we still need to figure out what to do with it. At the moment, my understanding is that a hazardous waste facility is the safest place for the mercury we do have.
Senator Kenny: Can you give us an example of a really good facility?
The Chairman: We did not get names, but we heard from other witnesses that there are such facilities. Provincial regulations make a distinction between the ones that are and are not. Municipalities dealing with dental waste, that do not have an accredited landfill, have to send that waste — and do — to a proper plant; in the case of some of them, to the United States.
Dr. Khatter: According to the national pollutant release inventory, the facilities in Canada that report are disposing of, either on-site or off-site, 45 tonnes of mercury each year. You would have to ask them and Environment Canada how that mercury disposal is done. My understanding is that even Environment Canada does not have the whole picture of what is happening with that mercury.
Senator Kenny: If we wanted to be serious about doing something, we would be running a list of places where one could send it across the bottom of the television screen as we are having this hearing, saying, "Here is the place near you." Not to put words in your mouth, but it appears that you are not familiar with where these sites are, and it is not obvious to most people where to send mercury.
Dr. Khatter: Part of the problem is that those sites are not available to the average citizen. The companies know where they are sending their mercury waste. However, in terms of where to send a fluorescent light bulb, the hazardous waste facilities in Toronto say, "We do not take that stuff." There is no other answer for the average citizen as to where they should send their mercury-containing waste. There may be answers, but I do not have them.
The Chairman: I will give you one. You can come to Edmonton and see how it is done, because we do it.
Senator Kenny: In fairness, you can go to Edmonton and see how everything is done.
The Chairman: That is true. There are designated facilities in Edmonton for the disposal of mercury light bulbs.
Senator Kenny: If I could make an observation for the record, chair, if we are reviewing the act, this would appear to be a deficiency in most places, with the exception of Edmonton.
The Chairman: Send your old light bulbs to Edmonton.
Senator Kenny: You suggested that, chair, not me.
Senator Milne: Save them up for how long? Until they break?
Senator Kenny: There is a serious point here.
The Chairman: Yes, there is.
Senator Kenny: If we are in doubt about a safe place to send them, and it seems that it is not obvious to everyone where they might go, we might want to make that observation when we report.
The Chairman: Not only that, we might want to ask that question of people who purport to know or who should know.
Senator Kenny: We want names.
Senator Milne: You said that 45 tonnes are being disposed of per year. That is presumably 45 tonnes that are going into some form of manufacturing, of which five tonnes are going into dental fillings a year, because you also said five tonnes of mercury is used in fillings every year.
Dr. Khatter: Yes.
Senator Milne: That is a tremendous discrepancy. I am quite sure that 40 tonnes are not being used in light bulbs per year. Where are the other major uses?
Dr. Khatter: I believe we are speaking about different pools. Most of this is Environment Canada's numbers. The five tonnes that we are using in dental amalgam is five tonnes of mercury that is either in commerce in Canada or is being imported into Canada to use in dental amalgam. Another 10 tonnes are being put in consumer products — that is probably high, and it is probably closer to five tonnes. In total, for consumer products, there are 10 tonnes. It may be a bit less than 45 tonnes, because under the national pollutant release inventory, each facility reports and some might be double reporting. In other words, if mercury is sent on to someone else, they may also report it, so it may be slightly less. Those 45 tonnes are just waste mercury and have nothing to do with the other five tonnes and 10 tonnes. That is simply on-site and offsite disposal by facilities that produce enough mercury that they have to report it under the release inventory.
Senator Milne: Is the difference between the two numbers, the waste mercury, being disposed of safely? If they can report it, they must know how much they have and where it is going.
Dr. Khatter: I am still looking for an answer to those details as well. My understanding is that it is either stored on- site in some sort of hazardous waste facility or it is shipped off to someone else who stores it. I am not sure about the quality of that storage or how well it is done.
Senator Milne: Is mercury more harmful to living creatures if it is discharged through the air, or if it is landfilled into some site where it is presumably eventually stabilized or consolidated or carried out on the ground water? Which is the safest for human beings?
Dr. Khatter: If it is put in the air as opposed to the ground?
Mr. Wilkins: Briefly, it is a very pervasive element. It can transform into methylmercury. It goes into the air and falls into the water, and then it can go back into the air, I understand. When it is put into a landfill, for example, if it seeps into the water, then it is in the water and the fish.
Senator Milne: It undoubtedly eventually will do that, because landfills are porous.
Mr. Wilkins: Exactly. Since it is so pervasive, it continues to cycle through the environment. Unless it is in a safe place deep underground or somewhere where it will not have the opportunity to transform into a different medium, then it will continue to cycle through the environment.
Senator Milne: You are saying they are both?
Mr. Wilkins: Both, yes.
Dr. Khatter: That is why you need to store it in something more than a regular landfill.
One of the problems with landfills, in terms of methylmercury, is that the bacterial reactions serve to make the mercury more toxic and turn it into methylmercury and dimethylmercury. When our municipal waste mercury sits in the landfill, it actually gets more harmful.
Senator Cochrane: We were told last week by the dentists that if the mercury from fillings is combined with other substances, then the mercury becomes inert. Are you aware of that?
Senator Milne: It becomes tightly bound. It is stable.
Dr. Khatter: I do not know that much about chemistry. That is possible. I believe dentists are speaking about the dental amalgam and the fillings they use and that binding that mercury means only a certain amount of it will be released. We know that mercury is still released from fillings when we chew or the mercury is worked with, but it is not released as quickly because it is bound to something.
Senator Kenny: But it is hard to tell the temperature?
Senator Sibbeston: We in the North, in Nunavut, have always lived under the myth — and I feel it is true — that we live in a nice part of the North; in the wilderness everything is pristine. However, as I attend these meetings I become more aware of the extent to which there is pollution in the North. Hearing statistics that 68 per cent of mothers in Baffin — and I am sure it would apply to other parts of the Arctic — have blood levels of mercury above the Environmental Protection Agency safe guidelines makes one concerned. I am sure that is the case with men, too; it is not just women.
Also, 16 per cent of people in the Arctic have mercury levels over 100, which is five times above the safe level. We are also learning how that shows up in people, particularly mothers and babies. Methylmercury exposure from consumption of fish is associated with poor performance on neurobehavioural tasks, particularly attention, fine motor function, language, visual abilities and verbal memories. These are defects in learning and the mental ability of young children. I am beginning to see that the effects of mercury pollution are quite serious.
Life in the North is harsh; people depend on fish and meat off the land. In the Arctic, life comes from the sea; the walruses, seals, whales and fish. Animals that feed the population come more from the sea than the land.
We used to believe that living off the land in the North and using country food made us tough and able to endure the harsh conditions. If people ate processed, store-bought food, they were considered weak. Now, country food, because of the mercury pollution, is not as safe as it used to be. People in the North should be concerned.
How serious is it? It sounds ominous and terrible. In reality, for the people of the North, who might be watching us and hearing us, how concerned should they be? Should people actually stop eating fish and animals from the sea and the land animals, such as caribou?
Dr. Khatter: The problem is serious; Health Canada and other scientists have said they believe it is serious. At the same time, eating country food does make people strong and is an important part of the livelihood. At the moment, the levels are not high enough that experts are suggesting that these foods should not be eaten.
There are questions about avoiding the foods that are most contaminated. There are recommendations for us not to eat certain ocean and sport fish that have higher contamination. We can get fish protein, oils and important nutrition from eating the safer versions. We need to avoid reaching the point where breastfeeding will be more harmful than good. We do not feel we are at that point right now.
The effects that you read off are sometimes difficult to measure, and it can often be difficult to make a direct connection as to the cause. It is a bit like the story that is told of lead in gasoline: We do not know how smart we would have been if we had the removed the lead from gasoline earlier; we know that lead affected our children, but it is hard to tell how much. The same situation is happening in the North, in that it is hard to tell how bad the effect of the mercury is right now.
Senator Sibbeston: Another issue affecting us in the North is global warming. We used to have a saying in the North: Which weekend was summer? It was just a matter of days. At times, the snow and ice never melted in places in the high Arctic, such as Resolute Bay. This was probably decades ago, and now that it is getting warmer, I guess the question will be: Which week or which month was Christmas? Which month was summer?
Recently, scientists aboard a research ship found that there were higher than expected mercury levels in whales in the Western Arctic. It was found that these levels rose fourfold in the 1990s. Scientists, in trying to explain where the high mercury levels were coming from, thought that they might come from the Mackenzie River, which has its origin in the south, in Alberta. Many rivers flow into the Mackenzie River from Alberta and B.C. where there are an abundance of industrial developments. Much of the industrial elements end up in the river and then flow out to the Beaufort Sea.
Senator Adams: Also, Hudson Bay.
Senator Sibbeston: Yes. The other factor is that with global warming, it is thought that melting permafrost is releasing naturally occurring mercury. Do you know whether that is a serious factor?
Mr. Wilkins: I have not seen any studies on that, but it is possible. It would not surprise me. If there is any mercury in the snow, it would melt; but I am not aware of how much mercury there is in permafrost.
Senator Sibbeston: I appreciate that you are not the government, but are representing the environmental groups of Pollution Watch and Sierra Legal Defence Fund. Perhaps, you have had a chance to study the actions that the government is recently undertaking with the proposed clean air act.
Do you think this act could be effective in reducing the amount of pollution in the North?
Mr. Wilkins: The proposed clean air act does not provide any new mechanisms which do not already exist under the present CEPA, but I do believe the present CEPA provides the mechanisms for regulatory action that can effectively address these issues. Under section 93 of CEPA, as it is now, there is scope for the government to take strong action on mercury emissions. I would hope that they do that soon.
Senator Sibbeston: This whole matter of environment and global warming will affect people in the North; they are being affected already. In the last few days, I have heard reports of people saying that normally by this time — November 1, tomorrow — they start trapping. They have prepared and organized themselves and usually by November 1 they are out there trapping and catching furs. However, in places like Inuvik and Fort MacPherson, it has barely snowed and there is not enough ice to get out on the land.
Global warming, for people in the South who doubt it, is very real in the North. We, in the North, really feel the effects of global warming; there are signs that it is not as cold as it used to be. We are affected the most of any region and people of Canada. The government must take this matter of global warming and pollution very seriously because it is affecting the North.
Everyone loves the North. People want to go up North in the summer and see the great part of the country where the Aboriginal people live how they lived hundreds of years ago, and they like the pristine land. In my area of Nahanni National Park, people come from all over the world to visit, and they go up into the Arctic. However, it will not be like that if we continue with our global warming and continue polluting the North.
As a person living in the North, I sometimes wonder if the pollution is really serious. However, when people come from the North and then travel south, they really see it. Maybe people from the South take it for granted because they were born here and live with it, so they do not notice it. However, we see the extent of the pollution, particularly by vehicles — the hundreds of thousands of vehicles spewing out exhaust and emissions.
It has all added up. Also, with all the manufacturing areas of the country, all these smokestacks, for example — particularly in Alberta, in the oil sands that release so much emissions; it is finally adding up to have an effect on the North, on our country.
We really have to be conscious and sensitive about it, and also get angry about it. We need to be serious and get angry about it, lest we all die. I cannot imagine the North getting too hot. We always say we do not want the North to warm up because people from the South will come. We like it the way it is, where there are not too many people and we have lots of land.
The Chairman: We might be going to beach resorts on the Arctic Ocean if global warming continues; there might be some benefits in that respect. There is no doubt that there are some bad things moving toward the North, including desertification.
Senator Kenny: I have a question resulting from Senator Sibbeston's questions. My experience in the North is limited to Inuvik and Tuktoyaktuk and the area around the Beaufort Sea. I have been there a number of times and my impression was that it was not pristine, and it was not an area where it was easy to manage waste.
The problems of permafrost seem to make it exceptionally difficult. It seems to me we should be paying special attention to that. I am not aware that much mercury is produced or used in the North and yet there seems to be problems with it in the food there.
I cannot imagine how one would dispose of the waste in the North, where there is permafrost and dealing with just routine garbage poses a problem. This is a very special area that requires consideration. I cannot imagine that in a community like Inuvik — where the pipes have to be run above ground and everything functions in a way to accommodate this permafrost — they can cope with waste the way we do in the South.
Again, I have not seen any arguments or positions that have suggested that the North produces additional mercury, or the sources of mercury would be greater in the North. The climate does not permit a way to address the problem of the mercury that is there. It may if the global warming you talk about continues, but I cannot imagine how one would go about it. Have we had testimony to that effect?
The Chairman: We have not got that yet from Health Canada or Environment Canada, who have appeared before us once and will appear again on Thursday. It is one of questions we need to ask them.
Senator Kenny: It may be a level of granularity that they cannot cope with. However, we have heard Senator Sibbeston raise this a number of times, and it is clearly an issue that the committee needs to come to grips with. Senator Adams has been vociferous about it, as well.
The Chairman: The problem in the North is not so much the dealing with emissions of mercury from industrial or commercial undertakings as it is the fact that, in the air and in the water, mercury — including methylmercury and dimethylmercury, which comes from other uses in other places — transports and migrates to the North. Therefore, mercury shows up in the ground, water and air. I believe there is no way to collect it from those sources, but I will ask that question of our witnesses. There is no way to collect it, is that right? It is in the air, in the water.
Senator Kenny: I cannot see where it would come from — even it going down the Mackenzie River.
Senator Sibbeston: It comes from the oil sands and industrial development in the South.
The Chairman: It is north of Edmonton. Senator Kenny has raised an interesting question. We have heard this before. The mercury in the North, which is a big problem, obviously does not come from commercial enterprises or the manufacturing of products using mercury in that region. It is transported there and it migrates there.
Is there any way to collect the mercury that is in the air, water and ground or should it be stopped at source? It seems unfair that, although they did not produce it, it is there.
Mr. Wilkins: That is my understanding. Our scientist at Sierra Legal, Elaine MacDonald, gave testimony some weeks ago. I can relate that question to her. My understanding is that once it is out of the stack and cycling through the environment, it cannot be collected — except when we eat fish, I suppose.
The Chairman: That is not a very good way of collecting it; and even then, you cannot collect it really. That would be an argument in favour of preventing its use in industrial applications rather than trying, as Senator Tardif said earlier, to deal with the end-of-the-pipe accumulation of mercury.
Mr. Wilkins: That is right. The way to tackle mercury is to stop using it, and to make sure that mercury used in industrial processes is collected through scrubbers or other processes.
Senator Kenny: That does not solve the problem in the North.
Mr. Wilkins: No, it does not.
Senator Adams: We have noticed many strange occurrences that we have never seen before — insects and birds and such. It has nothing to do with the mercury; it is something to do with climate change.
Last year, I saw a robin in Rankin Inlet, something I have never seen in the 40 years I have been up there. This summer, a little bird was born in my warehouse in Rankin Inlet; I have a picture. Unfortunately, we do not have worms up there. It is the same with geese and others types of birds we have never seen before. It must be a sign that the weather is changing and becoming warmer.
People in the community notice these changes. Even this year, usually around the middle of October, we used to have a high tide; it is the last high tide in Hudson Bay. About a month ago we had a warp in the dock and water came over top of it. People called us to tie the dock in close to the shore. We never saw the dock come that high. Husky dogs went missing as a result. We do not know why that happened. People in the community are surprised by what is happening with the tide.
The highest tide happened when I was young. We used to put the boat up during high tide. It was the last big one, and this year it was three or four times larger than last year.
The Chairman: I am sure we will be dealing with the question of rising sea levels as the result of global warming soon in another study.
Senator Sibbeston: Today, being Halloween, I have a question for the benefit of our southern viewers. Senator Adams will be aware of this up in the Arctic where it is very cold in the winter and everything is frozen very hard with permafrost.
When people die in the wintertime, how do you think they dispose of the bodies?
The Chairman: It depends on which part of the North.
Senator Sibbeston: Let us assume we are way up in the Arctic where there is permafrost and it is as cold as -30 to -40 degrees Celsius all winter long. We cannot dig the ground out, and there are no crematoriums in the North. People do not believe in being burned; the bodies must be intact. How do you think people are buried or disposed of?
The Chairman: In certain parts of the North, they build wooden structures where the bodies are stored until they can dig into the permafrost.
Senator Adams: In the old days, we used to bury bodies in the rocks. We presently have graveyards if someone dies in the summertime. In the case of someone dying in the wintertime, it is controlled by the municipality. It is impossible to dig six feet down.
Senator Sibbeston: Where I live, in the Fort Simpson area, which is a sub-Arctic region, the ground is frozen generally down to two or three feet. Once that is passed, the ground can be dug into where it is not frozen.
Fortunately, in my area, people are buried and can be put at least six feet into the ground. In other areas where there is permafrost year-round, people are put into coffins and boxes above ground. Rocks and such are put over them.
A long time ago, and Senator Adams may be better able to speak to this, there was no such thing as burial and people being put in boxes. What happened to the bodies?
Senator Adams: They were usually just covered up with rocks. That is the way we did it up there.
The Chairman: I want to get to a few legal questions. It has been represented to us before by a succession of Ministers of the Environment that the voluntary approach of addressing mercury in Canada is desirable by comparison with the non-voluntary approach in other countries, particularly the United States.
The example given is that, with respect to environmental law, there are so many lawsuits and the repercussions of those lawsuits in terms of appeals, countersuits and such, that they are clogging the United States justice system. They can never be dealt with, and it is better, more efficient and quicker in the long run to deal with these questions by using voluntary measures.
You have suggested today that that is not true. I do not know if we will hear from the present Minister of the Environment whether that is true or not, but we have heard from three previous Ministers of the Environment. Could you comment on that?
Mr. Wilkins: In Canada, we have somewhat of a different culture, with respect to lawsuits, than they do in the United States. Perhaps, there are greater incentives for civil lawsuits in the United States. There are often greater awards given by the courts, and, as a result, there is more litigation in the United States than in Canada.
We have seen through our voluntary approaches to addressing mercury that they have not had the impact we need to have in order to reduce the environmental, health and economic harm that mercury causes.
Having a regulatory approach would be a means of achieving the objectives we seek. We do not feel it will increase litigation substantially, in terms of civil litigation. It would be great if there were more prosecutions. If that is the type of litigation you are speaking of, I believe it would be a good thing if we had more prosecutions under CEPA.
The Chairman: I am talking about government-initiated prosecutions under United States environmental laws against, one assumes, people who have transgressed those laws. It is those — previous arguments have been made to us — that are clogging up the courts so much there that they will never be resolved, others cannot get in there and it is a terrible mess. Are you under that same impression?
Mr. Wilkins: No, I am not. In Canada, we are at a point that we need to take regulatory action and have laws enforced. It is important to set the precedence so companies will comply with the regulations and reduce the amount of mercury emitted.
Senator Kenny asked a question regarding whether reducing emissions will have any impact on the Arctic. I said there would not be an impact.
However, to clarify, by having a regulatory approach and ensuring we reduce emissions, we will not make the situation worse in the Arctic. That is the problem; we are progressively getting worse. We must stop and prevent it from becoming a catastrophe.
The Chairman: In the present clean air bill, as Senator Tardif has mentioned, mercury and several variants of mercury show up on the list of pollutant substances and on Schedule 1 as toxic.
It is not hard to imagine, we have heard from others, that at some point in the future it would be easy for an amendment to be introduced saying we do not have to have mercury listed in two places. Let us have it listed on the pollutants list and take it off the other list.
Second, we have heard in the past that the reason the Canadian Environmental Protection Act survived a court challenge was, according to the judgment of the court, entirely because the word "toxic" was used, and it is that level of importance of toxicity as opposed to merely pollutant that allowed the court to arrive at a decision that upheld the Canadian Environmental Protection Act.
Do you see a danger in respect of the survival of CEPA under the Constitution or to survive other kinds of court challenges if mercury and other similar substances, which presently appear on Schedule 1 of CEPA, were to be removed and called something other than "toxic"?
Mr. Wilkins: There is a significant danger of a court challenge being brought.
After regulations are put into force and after a company is prosecuted, there is a very good possibility they will bring a court challenge forward challenging the federal government's jurisdiction to bring forth a regulation dealing with air pollutants.
In the past, the Supreme Court of Canada has found that toxic substances fall under the federal government's authority in respect of criminal powers and also in respect of the peace, order and good governance clause of the Constitution, thereby empowering the federal government to deal with toxic substances. We have not had the courts consider whether pollutants fall under federal jurisdiction. Former Supreme Court Justice Gerard La Forest indicated that there is a danger that federal legislation focusing on air pollutants might not pass muster and the courts might strike it down. There is a danger of that, certainly.
The Chairman: My recollection of the challenge referred to by the previous witness who suggested this problem, is that the decision of the court on that occasion was on the order of four to three.
Mr. Wilkins: There were two decisions. R. v. Crown Zellerbach Canada Ltd. in the late 1980s dealt with toxic substances deposited into waters. It was found that under the peace, order and good governance clause of the Constitution, the federal government had jurisdiction. More recently, in R. v. Hydro-Québec, the court decided that federal environmental regulation fell under criminal law. Thus, the federal government had jurisdiction.
The Chairman: The finding was close, was it not?
Mr. Wilkins: In the Hydro-Québec case it was close, but I would have to double-check the other one to know for certain.
The Chairman: I thank both the witnesses for appearing this evening. I would suspect that when the committee moves on to the second and third aspects of its study, we might ask you to come back.
The committee adjourned.